T.N. Singh, J. 1. This appeal by the defendants against a remand order involves a short but important point of law. The suit was for. determination of the respective shares of the plaintiffs on effecting an imperfect partition of the scheduled land. On pleadings as many as 6 issues were framed of which issues Nos. 1, 3 and 5 were decided in favour of the plaintiffs. The learned Munsiff held that the plaintiffs had cause of action for the suit; that the suit was not barced by limitation; and a

Excerpt:.....adjudicate and settle all questions involved in the suit'.7. taking into consideration the provisions of order 1, rule 10 (2) and order 6. rule 17 and exposition of the legal position in relation thereto enunciated in the different decisions discussed above i am of the firm opinion that as change in law as respects addition of necessary parties has been made by the amendment effected in the c. because, in that case the object thereof would be clearly repugnant to the substantive provisions contained in the main part but a proviso is not allowed by the canons of interpretation to achieve such a result. 8. in view of the legal position discussed above i am of the firm opinion that the impugned judgment and decree passed by the court below remanding the case to the trial court for..........defendants in the suit by amending the plaint. the learned assistant district judge who heard the appeal allowed the same and remanded the suit for retrial with the direction that the court below shall give an opportunity to the plaintiffs to implead necessary parties in the suit and to make necessary amendment in the plaint, accordingly. 3. in assailing the impugned judgment and decree the main contention raised before me by mr. s. k. laskar, the learned counsel appearing for the appellants, is that the learned lower appellate court erred in law in holding that the case was governed by the old (unamended) c. p. c. in view of the settled law that there could be no vested right in respect of procedure, and the 1976 c. p. c. amendment act not having made any saving in express terms in.....

Judgment:

T.N. Singh, J.

1. This appeal by the defendants against a remand order involves a short but important point of law. The suit was for. determination of the respective shares of the plaintiffs on effecting an imperfect partition of the scheduled land. On pleadings as many as 6 issues were framed of which issues Nos. 1, 3 and 5 were decided in favour of the plaintiffs. The learned Munsiff held that the plaintiffs had cause of action for the suit; that the suit was not barced by limitation; and also that the plaintiffs had title to the suit land. The suit was dismissed by him on the basis of his findings on issues Nos. 2 and 4 which related in one case to non-joinder of parties and in the other case to maintainability. The Court held that the suit being one for partition all the co-sharers were necessary parties and from the evidence it having been found that some co-sharers were not impleaded by the plaintiffs he decided issue No. 7 in favour of the defendants to hold that the plaintiffs were not entitled to any relief and accordingly dismissed the suit.

2. The learned lower appellate Court reappraised the evidence on issues Nos. 2 and 4 and came to the conclusion that although the bone of contention between the parties according to the Court below was whether one Ishan Mia was also a co-sharer being also a sou of one Sagir Mohammad as it was the common case of the parties that Sagir Mohammad was one of the sons of Golam Mahammad whose claim was not disputed by either side, the finding of the learned Munsiff stood on shaky foundation as there was no evidence to support the theory that Sagir Mohammad was also known as Nawaz Mia. The suit therefore could not be dismissed for not impleading heirs of Ishan Mia, according to the learned appellate Court. It was further held that the suit being instituted on 5-9-1972 and the judgment therein being rendered on 29-11-1975 it would be governed by the provisions of the unamended C. P. C. and therefore under Order 1, Rule 9 the suit could not be dismissed for non-joinder of the parties. It was further observed that the learned Munsiff ought to have offered an opportunity to the plaintiffs to implead the necessary parties instead of dismissing the suit outright. On 20-4-1976 the plaintiffs-appellants filed an application in the appeal stating that in view of the objection raised by the defendants-respondents in the Court below on the score of non-joinder of necessary parties accepting which the Court below had dismissed the suit, they may be allowed to meet the objection and the parties named in the application may be allowed to be impleaded as respondents in the appeal and that they may be also impleaded as defendants in the suit by amending the plaint. The learned Assistant District Judge who heard the appeal allowed the same and remanded the suit for retrial with the direction that the Court below shall give an opportunity to the plaintiffs to implead necessary parties in the suit and to make necessary amendment in the plaint, accordingly.

3. In assailing the impugned judgment and decree the main contention raised before me by Mr. S. K. Laskar, the learned counsel appearing for the appellants, is that the learned lower appellate Court erred in law in holding that the case was governed by the old (unamended) C. P. C. in view of the settled law that there could be no vested right in respect of procedure, and the 1976 C. P. C. Amendment Act not having made any saving in express terms in respect of the relevant provisions contained in Section 99 and Order 1, Rule 9 it ought to have applied to the case the amended provisions. He has accordingly drawn my attention to the two provisos added by the Amendment Act to Section 99 as well as to Order 1, Rule 9 which arc, indeed, couched in the same phraseology, as follows :

'Provided that nothing in the section (rule) shall apply to non-joinder of a necessary party'.

4. Mr. Laskar further submits that in any case even if the matter is held to be governed by the unamended provision the plaintiffs are not entitled to avail the benefit of the provision of either Section 99 or Order 1. Rule 9 inasmuch as what can be said to be compendiously contemplated under these provisions is that no decree shall be reversed or substantially varied and no case shall be remanded in appeal when the defect or irregularity docs not affect the merit of the case or jurisdiction of the Court and further that no suit shall be defeated in a case where the defect relates merely to misjoinder or non-joinder of parties generally and these provisions do not operate when the case is one of 'necessary parties' being not impleaded. In this connection he has drawn my attention to a decision reported in AIR 1965 SC 271. (Kanakarathanammal v. Loganatha). It was held in that case that the provisions of Order 1, Rule 9 are not meant to apply in a case where the defect is one which relates to non-joinder of necessary parties and further that in such cases the infirmity ought to be treated as fatal. This provision, however, was not considered by the Court even in that case to control or affect the power of the Court to allow amendment of the pleadings under Order 6, Rule 17. It was observed that the brothers in that case were necessary parties in a suit by the daughter claiming recovery of property from the beneficiary under the will as brothers were entitled to inherit the property along with her and the suit partook the character of a suit for partition. The plea as to non-joinder was raised in the trial Court and issue was also framed but the plaintiff made no attempt to amend her plaint even in the appeal before the High Court and no application even in the appeal in the Supreme Court was made until the appeal was allowed to stand over after it was heard. The Supreme Court, therefore, rejected the belated application for amendment which was made before it. About the power of the Court to direct necessary parties to be joined under Order I, Rule 10, it was observed that it can and should be done at the stage of trial and too without prejudice to the parties plea of limitation. This decision, therefore, does not support, in my opinion, Mr. Laskar's contention.

5. In my opinion the crux of the matter lies in determining the scope and ambit of the power of the Court to allow amendment of the pleadings under Order 6, Rule 17, C. P. C. inasmuch as when a party is allowed to be added the end result is reflected in the amendment. This aspect of the matter has been considered by the apex Court in a large number of decisions. In a cecent decision Krishna Iyer, J. speaking for the Court in Suraj Prakash v. Raj Rani, (AIR 1981 SC 485) observed as follows (para 6) :

'The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings.'

It is true that in that case the nature of amendment sought and allowed was in respect of a new relief and not of impleading new parties. The principle laid down in the case, in my opinion, however, does not admit of any distinction between the two situations. The decision in Manoharlal v. N. B. M. Supply, (AIR 1969 SC 1267 (1269)) on the other hand did relate in fact to an amendment in respect of the plaintiff being allowed to describe himself properly and as such it was a case of impleading of parties. In that case also it was observed that 'However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side 'adding further that' a party cannot be refused just relief merely because of mistake, negligence, inadvertence or even infraction of the rule of procedure'. In AIR 1968 SC 1165, (Nair Service Society v. K. C. Alexander) the Court held that to avoid circuity of litigation amendment could be allowed of the pleadings even on the eve of appellate judgment. In that case the application for amendment was made to the High Court and as it was done 'literally on the eve of the judgment' the High Court had rejected the same. The Supreme Court allowed the appeal and remanded the case holding that the amendment ought to be allowed and that changed circumstances could also be considered foe this purpose 'to shorten litigation' and to 'avoid circuity of action'. In AIR 1960 SC 622, (Lakshminarasimhachari v. Sri Agastheswaraswamivaru) the Court observed that the High Court was right in allowing at the appellate stage the amendment by the addition of a new prayer in the plaint as the parties were fully cognizant of the points in controversy and they had led the necessary evidence thereon. In AIR 1957 SC 357. (Leach and Co. v. Jardine Sikinner and Co.) the Court went to the extent of holding that if a fresh suit on the amended claim would be barred by limitation on the date of the application that would merely be a factor to be determined in the exercise of its discretion by the Court and that it did not affect the power of the Court to allow the prayer it that was required in the interest of justice.

6. I have stressed the primacy in such matters of the provisions of Order 6, Rule 17, C. P. C. also for the reason that it is a salutary rule of interpretation that the different provisions of the statute having a bearing on any particular aspect of any matter must be read together so as to avoid any possible conflict between them and to divine the legislative intent in a manner that will secure for the relevant provisions a harmonious co-existence. The maxim ex visceribus actus is, indeed, a manifestation of this principle. It is trite law that procedures are to be treated merely as handmaids of justice and as such Courts will lean in favour of a construction which will prevent the plaintiff being non-suited on any technical ground. In this connection, therefore, it is necessary in my opinion to read also in this context the provisions of Order 1, Rule 10 (2) which empowers the Court, inter alia, to add any party whether as plaintiff or defendant at any stage of the proceeding to enable the Court to 'effectually and completely to adjudicate upon and settle all the questions involved in the suit'. My attention in this connection has been drawn to certain decisions having a bearing on this matter to which a reference may be made with profit. In AIR 1925 Alt 768, (Firm Shiam Lal v. Dhanpat Rai) Sulaiman, J. speaking for the Court observed that although under Order 41, Rule 20 the appellate Court had no power to implead in appeal a person who was not a patty to the original suit if it considered that a necessary party was left out and had to be impleaded in the suit the proper procedure to be adopted in such a case was to remand the case to the Court of first instance with necessary direction in this behalf. A single Bench of the same Court in AIR 1940 All 399, (Noor Mahammad v. Zainul Abdin) following this decision in dealing with a matter arising out of a partition suit, as is the case in hand, held that even at the appellate stage if the Court considered that a certain person was a necessary party and ought to have been impleaded in the suit the matter should be remanded to the Court below to implead that person and then to proceed to dispose of the case. Notice in this case was taken of the provision of Order 1, Rule 10 and it was observed that the power in this behalf was exercisable by the Court thereunder pursuant to which the plaint could thereafter be amended and opportunity would be given for filing written statement to those impleaded in this manner. A similar view was taken in AIR 1949 Lahore 248, (Imam Din v. Mt. Fazlan) wherein the Court similarly construed the provision of Order 1, Rule 10(2) and following, albeit, the decisions in AIR 1928 Cal 138 (Arundoya Chakrabarty v. Mahammad Ali) and AIR 1929 Cal 669 (Mokshud Mandal v. Khedu Mondal) allowed the second appeal and remanded the case to the trial Court for fresh decision after impleading the parties in whose absence an effective decree in the case could not have been passed I express my respectful agreement with the views expressed in these decisions and in my opinion the principles enunciated by Allahabad, Calcutta and Lahore High Courts are applicable on all fours to the facts of the case in hand. However, it may also be noted that the provisions of Order 1, Rule 10 (2) came to be considered in AIR 1958 SC 886, (Razia Begum v. Anwar Begum) wherein the majority speaking through B. P. Sinha, J. (as he then was) observed that the matter of impleading party was not to be considered as raising any question of initial jurisdiction arid that it was merely a matter of discretion which had however to be exercised judicially taking into consideration the facts and circumstances of the case. Jafar Imam, J., though arrived at a different conclusion on the facts of the case, also observed that the power could be exercised 'if the Court is satisfied that it is necessary to make an order under Order 1, Rule 10 in order to effectually and completely adjudicate and settle all questions involved in the suit'.

7. Taking into consideration the provisions of Order 1, Rule 10 (2) and Order 6. Rule 17 and exposition of the legal position in relation thereto enunciated in the different decisions discussed above I am of the firm opinion that as change in law as respects addition of necessary parties has been made by the amendment effected in the C. P. C. in 1976 by adding the two provisos to Section 99 and Order 1, Rule 9. As observed earlier all these provisions have to be read together and notice has therefore to be taken of the position that no amendment in any manner was considered necessary by the legislature in the case of either of the provisions (Order 1, Rule 10 (2) and Order 6, Rule 17) as consequential to the addition of the two provisos. Thus, in my opinion, the purport of the provisos is not to non-suit a plaintiff if relict may be made available to him by the Court in exercise of its power under Order 1, Rule 10 (2) and Order 6, Rule 17. It is indubitable that the general purport of the provisos is merely to circumscribe or curtail the scope of operation of the main provision. It cannot, and does not, therefore, normally expand the; scope of the main provision or otherwise contain in itself any substantive right or rule or procedure. There cannot be any doubt about the position that both Sec. 99 and Order 1. Rule 9 are remedial provisions. The object of both these provisions is to ensure that prolixity in litigation is avoided on the one hand and on the other, band technicalities which inevitably bear its stamp on the procedural law must not be allowed to defeat the ends of justice. This object, in my opinion, has not in any way been affected by the two provisos. Because, in that case the object thereof would be clearly repugnant to the substantive provisions contained in the main part but a proviso is not allowed by the canons of interpretation to achieve such a result. In my opinion the core object of the two provisos is that no decision should be rendered in any suit. In the absence of the necessary parties and if that was done such a decision could not be saved by virtue of the remedial measures enacted in the main part or rather the unamended provisions of Section 99 and Order 1, Rule 9, C. P. C. and therefore the two provisions were merely inserted by way of abundant caution. Indeed, these two provisions were made more meaningful and effective by the addition of the provisos to pre-empt prolixity and circuity in litigation. These are, therefore, not to be so construed as to mean that merely because a necessary party was not before the Court the suit must be dismissed. Indeed, in such cases the power of the Court which it can exercise under Order 1, Rule 10 (2) and Order 6, Rule 17 which remain unamended can be invoked and this power is not impaired or indented in any manner by the two new provisos, the real purport of which, as I have indicated, is not penal but remedial.

8. In view of the legal position discussed above I am of the firm opinion that the impugned judgment and decree passed by the Court below remanding the case to the trial Court for impleading the necessary parties and proceeding with the trial thereafter was not only perfectly legal and right, it was also just and expedient being the most appropriate course to be followed in such cases. I have no doubt that in this case the amendment to be allowed shall not cause any injustice to the parties to be impleaded as no question of limitation is involved in the matter. On the other hand it shall secure complete justice to all concerned by pre-empting multiplicity of prolixity in litigation. Accordingly, I uphold the judgment and decree passed by the learned lower appellate Court and dismiss the appeal. In view of the fact however that in this appeal a point of law of some importance was agitated on which there appears to be no decision of this Court, I leave the parties to bear their own costs of this appeal.

9. Let the relevant records be sent down immediately to the trial Court for expeditious disposal of the suit in accordance with the directions given by the Court below in the remand order.